Han Lin Zeng
A Federal Court judge has promised to decide by midmorning Wednesday the fate of a multimillionaire businessman scheduled for deportation on Wednesday to face possible execution in China.
Han Lin Zeng is wanted in Beijing to face trial for an alleged $8-million stock fraud. His case raises the question of whether a swiftly modernizing superpower that practises capital punishment on thousands of its citizens each year can be trusted to resist the temptation to execute Mr. Zeng.
"My client is going to have a sleepless night," said lawyer Dan Kingwell, after Mr. Justice Richard Boivin retired on Tuesday evening to deliberate.
Mr. Kingwell said that China has made it known in recent years that its trading policy will take into account whether foreign nations hand over fugitives it is seeking. "If he is sent back to China and gets killed, I am going to hold the Minister [of Citizenship and Immigration]responsible for this," he said in an interview.
Mr. Zeng arrived illegally in 2004. He was discovered living underground in 2008, and has waged a losing battle for refugee status.
Mr. Kingwell and co-counsel Joel Sandalak asked Judge Boivin on Tuesday to stay their client's deportation and hear an appeal of an immigration decision, rendered last month, that Mr. Zeng could be safely deported. They warned that once he is back on Chinese soil, authorities will upgrade the charges to ones that carry the death penalty.
At the immigration hearing, a leading expert on the Chinese legal system - Vincent Cheng Yang - testified that Mr. Zeng could be tortured to extract a confession. "The likelihood of conviction, I would say, is very, very high in this case," said Prof. Yang, who has been used often by the federal government as an expert witness.
Prof. Yang also predicted that there is "a high likelihood" that Mr. Zeng would end up before a firing squad.
However, federal Crown counsel Kristina Dragaitis assured Judge Boivin on Tuesday that China can be trusted to try Mr. Zeng only on the charge of contract fraud he is currently facing. She said that a stiff prison sentence is the worst punishment he would face.
"To suggest they might be cute about it and use a low offence to avoid all the kafuffle about penalties is purely speculative," Ms. Dragaitis added.
Ms. Dragaitis conceded that Chinese authorities sometimes use torture to extract confessions, but she said that their targets are usually members of religious groups, such as the Falun Gong. As a person accused of an economic crime, she said, Mr. Zeng need not fear similar treatment.
"The applicant doesn't fit the profile of people who are tortured by security forces," Ms. Dragaitis added. "I don't think anyone can say there is no chance of torture, but the issue is whether it's more likely or not."
In a written brief to the court, Mr. Kingwell and Mr. Sandalak said that the immigration officer who concluded last month it was safe to deport Mr. Zeng was "shockingly naive." China is well aware that by playing down the possibility of execution, it stands a much better chance of obtaining Mr. Zeng, they said.
The brief also criticized the federal government for declining to ask China for assurances that Mr. Zeng will not be executed, as it routinely does in cases of deportation to a country that uses the death penalty.
"The government's response flies in the face of expert evidence from the authority they normally use," they said, adding: "Even if they did seek an assurance, we question the reliability of any assurance from China."
The brief noted that China has repeatedly violated similar commitments to countries such as Australia and the United States, executing prisoners it promised to spare.